Legal Notices

VERSION EFFECTIVE Date: September 29, 2016

BY ACCESSING, INSTALLING OR USING ALL OR ANY PORTION OF THE AMIUM PRODUCT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE AMIUM PRODUCT.

IF YOU are using the AMIUM product AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT.

These Amium Business Terms of Service ("Agreement") are entered into by and between Air Computing, Inc. ("Air Computing") and the entity or person placing an order for or accessing the Amium Product (as defined below) ("Customer" or "you") and are effective as of the earlier of (a) Customer’s initial access to the Amium Product through any online provisioning, registration, or order process or (b) Customer’s purchase of a Subscription (as defined below) ("Effective Date").

This Agreement permits you to receive a free trial or paid Subscription to the Amium Product pursuant to an Air Computing purchase authorization, order form or online registration referencing this Agreement ("Order Form") and sets forth the basic terms and conditions under which the Amium Product will be delivered. This Agreement governs your initial trial or purchase on the Effective Date as well as any future purchases made by you that reference this Agreement.

Free Access: If you receive free access to the Amium Product, you are deemed a "Customer" under this Agreement except that you are subject to the restrictions and limitations of Section 1.6 (Trial Subscriptions) below.

Modifications to this Agreement: From time to time, Air Computing may modify this Agreement. Unless otherwise specified by Air Computing, changes become effective for Customer upon renewal of your current Subscription Term (as defined below) or entry into a new Order Form. Air Computing will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Amium Product after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. Air Computing may notify Customer that modifications to this Agreement are effective immediately due to legal compliance, new product features or similar reasons, but in such cases, Air Computing will provide Customer with an opportunity to terminate this Agreement and receive a pro rata refund if Customer does not agree to those modifications.

Each party expressly agrees that this Agreement is legally binding upon it.

1. The Amium Product.

1.1 Amium Product Description.

Air Computing’s proprietary software-as-a-service solution ("Amium Product") is designed to allow file sharing, syncing, collaboration and messaging between members of a team created by Customer ("Team") across multiple computers and devices. The Amium Product is accessible through: (i) an online dashboard; and (ii) client software, which may be installed on end user computers or devices ("Client Software"). This Agreement permits Customer to purchase paid subscriptions or receive trial subscriptions to the Amium Product (each, a "Subscription") and sets forth the basic terms and conditions under which those Subscriptions and any related services will be delivered.

1.2 Subscription Terms and Renewals. Unless otherwise set forth on an Order Form or as set forth in Section 1.6 (Trial Subscriptions) below, the term of any Subscription shall be one (1) year commencing on the start date specified on the applicable Order Form (the "Subscription Term"). Unless this Agreement is terminated earlier in accordance with its terms, the Subscription Term will automatically renew upon expiration for additional successive one (1) year terms unless either party gives the other party prior written notice of cancellation at least thirty (30) days prior to the expiration of the then-current term.

1.3 Access to the Amium Product. Customer may access and use the Amium Product specified on the Order Form solely for its own benefit and in accordance with the terms and conditions of this Agreement, the technical documentation provided with the Amium Product ("Documentation") and any number of End Users or other scope of use restrictions designated on the Order Form ("Scope of Use"). The foregoing rights include a limited, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term to use the object code form of the Client Software, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the Scope of Use.

1.4 End Users.

1.4.1 End Users. An "End User" is an individual end user of the Amium Product whom Customer has invited to join Customer’s Team. End Users may be (i) Customer’s employees or Contractors (ii) employees or Contractors of Customer’s Affiliates, or (iii) unaffiliated third parties ("Third Party Users"). All use of the Amium Product by End Users must be for Customer’s or its Affiliates’ benefit. Use of the Amium Product by all End Users in the aggregate must be within the Scope of Use. "Affiliate" means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. "Contractor" means any third party employed by Customer to perform services on behalf of Customer.

1.4.2 Administrative Users. Customer may designate certain End Users as "Administrative Users" who are authorized to administer and provision End User accounts on Customer’s behalf.

1.4.3 End User Accounts. Each End User must create an account in order to use the Amium Product. Each End User must have a unique e-mail address. No more than one individual may use or access the Amium Product through a single End User account.

1.4.4 End User Terms. This Agreement shall govern use of the Amium Product by Customer’s and its Affiliates’ employees and Contractors, notwithstanding any separate then-current end user terms presented upon account registration ("End User Terms"). Third Party Users may only use the Amium Product if they have agreed to Air Computing’s End User Terms.

1.4.5 Responsibility for End Users. Customer shall be responsible for any and all use of the Amium Product by End Users and their compliance with the terms of this Agreement and any applicable End User Terms. If any End User is no longer authorized by Customer to participate in the Team, Customer is responsible for rescinding that End User’s access to the Amium Product.

1.5 General Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Amium Product to a third party (except with respect to access by Third Party Users as expressly permitted herein); (b) use the Amium Product to provide, or incorporate the Amium Product into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Amium Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to Air Computing); (d) copy or modify the Amium Product or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Amium Product (including any reports or data printed from the Amium Product); or (f) publicly disseminate information regarding the performance of the Amium Product.

1.6 Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Amium Product (a "Trial Subscription"), then Customer may use the Amium Product in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Air Computing (the "Trial Period"). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Amium Product. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription. If Customer does not purchase a paid Subscription, this Agreement and Customer’s right to access and use the Amium Product will terminate at the end of the Trial Period. Air Computing has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AIR COMPUTING WILL HAVE NO WARRANTY, INDEMNITY, DATA ARCHIVING, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

2. User Input

2.1 Sharing and Syncing. The Amium Product allows sharing and syncing of data, files, messages or related information that is input or uploaded by End Users ("User Input"). User Input shared via a “public” channel is viewable by all End Users on Customer’s Team. User Input shared via a “private” channel or direct messaging may be viewed by the specific End Users invited to that channel or party to the conversation. Unless an Administrative User has been invited to a private channel or is the recipient or sender of a direct message, Customer acknowledges that it may not have the ability to view or monitor User Input within such channel or conversation.

2.1.1 With Third Party Users. Customer acknowledges that it is Customer’s sole responsibility to evaluate any risks relating to sharing, receiving or syncing of User Input with any Third Party Users.

2.1.2 Unprotected Access to Links. In addition to sharing and synching User Input with other End Users, an End User may create and share links to download or view files with third parties. Customer acknowledges that, to the extent any End User shares a link to any User Input, that link can be accessed without any login, password or other restrictions.

2.2 License to Air Computing. Customer hereby grants to Air Computing a non-exclusive, worldwide, royalty-free right to use, copy, cache, transmit, modify, create derivative works of and publicly display the User Input solely to the extent necessary to provide the Amium Product to Customer (including its Team). As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the User Input as provided to Air Computing.

2.3 No User Input Backups. Air Computing does not maintain backups of User Input. Customer is solely responsible for backing up all User Input.

2.4 Responsibility for User Input. Customer shall ensure that Customer’s use of the Amium Product and all User Input are at all times compliant with the Air Computing Acceptable Use Policy ("AUP"), Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all User Input. Customer represents and warrants to Air Computing that Customer has sufficient rights in the User Input to grant the rights granted to Air Computing in Section 2.2 above and that the User Input (i) does not infringe, misappropriate, or violate the rights (including, without limitation, the intellectual property, privacy or publicity rights) of third parties, (ii) does not violate the AUP and (iii) otherwise complies with the terms of this Agreement.

2.5 Health Information. Customer will not submit to the Amium Product any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations ("Health Information") and acknowledges that Air Computing is not a Business Associate and that the Amium Product is not HIPAA compliant. "HIPAA" means the Health Insurance Portability Act, as amended and supplemented. Notwithstanding anything to the contrary herein, Air Computing shall have no liability under this Agreement for Health Information.

2.6 Global Transmission; EU Personal Data. Air Computing cannot control, and is not responsible for, the transfer of User Input (including personally identifiable information included therein) by Customer to other countries or jurisdictions around the world. Customer agrees not to use the Amium Product to store, process or transmit any information deemed to be “personal data” of an EU citizen (as such term is defined in EU Data Protection Directive 95/46/EC or any successor law or regulation).

2.7 Third Party Integrations. Air Computing may make available integrations with third party products and services for use in conjunction with the Amium Product ("Third Party Integrations"). Customer is solely responsible for determining whether to use such Third Party Integrations, including without limitation, whether to provide User Input or other data to such Third Party Integrations. Air Computing shall have no responsibility for any Third Party Integrations, including for their interoperability, security, functionality, operation, or integrity or for any use of Customer’s User Input or other data by Third Party Integrations. In order for the Amium Product to interoperate with such Third Party Integrations, Customer may be required to input credentials in order for the Amium Product to access and receive relevant information from such Third Party Integrations. Customer is solely responsible for complying with any relevant terms and conditions or usage restrictions applicable to such Third Party Integrations and maintaining appropriate accounts in good standing with the providers of such Third Party Integrations. Upon request from the provider of a Third Party Integration, at Air Computing’s election, Customer will provide confirmation of Air Computing’s authorization to access Customer’s accounts. From time to time, Air Computing may change which Third Party Integrations may be used with the Amium Product or discontinue providing any Third Party Integrations in its sole discretion.

2.8 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Air Computing from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any User Input or breach or alleged breach by Customer of Sections 2.4 (Responsibility for User Input), 2.5 (Health Information), 2.6 (Global Transmission; EU Personal Data) or 2.7 (Third Party Integrations), or (b) any service or product offered by Customer in connection with or related to the Amium Product. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Air Computing at Customer’s expense. Air Computing can participate in the defense of any such claim at its expense.

2.9 Third Party Requests. Customer is generally responsible for responding to a third party request regarding User Input, such as a subpoena, warrant, discovery order or other request or order from a law enforcement agency ("Third Party Request"). If Air Computing receives a Third Party Request with respect to User Input, Air Computing will, to the extent allowed by law and by the terms of the Third Party Request, use reasonable efforts to: (a) notify Customer of receipt of such Third Party Request and ask the third party to contact Customer directly and (b) comply with Customer’s reasonable requests regarding Customer’s efforts to oppose such Third Party Request at Customer’s expense. Customer will first seek to obtain the information required to respond to such Third Party Request on its own, and will contact Air Computing only if Customer cannot reasonably obtain such information. Notwithstanding anything to the contrary in this Agreement, Air Computing may respond to or make any disclosures in response to a Third Party Request required by law.

3. Ownership.

3.1 Air Computing Technology. This is a subscription agreement for access to and use of the Amium Product. Customer acknowledges that it is obtaining only a limited right to the Amium Product and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Air Computing or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Amium Product, Documentation and any and all related and underlying technology and documentation, including as may incorporate Feedback (collectively, "Air Computing Technology"). Except as expressly set forth in this Agreement, no rights in any Air Computing Technology are granted to Customer.

3.2 Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Air Computing product or service to Air Computing ("Feedback"). Air Computing may freely use or exploit Feedback in connection with any of its products or services.

3.3 Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Air Computing may obtain and aggregate technical and other data about Customer’s use of the Amium Product that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Air Computing may use the Aggregated Anonymous Data to improve, support and operate the Amium Product and otherwise for any business purpose during and after the term of this Agreement. For clarity, this Section 3.3 does not give Air Computing the right to identify Customer as the source of any Aggregated Anonymous Data.

4. Fees and Payment. All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 6 (Limited Warranty) and Section 9 (Indemnification), all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Air Computing. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

5. Term and Termination.

5.1 Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

5.2 Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

5.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Amium Product (including any and all related Air Computing Technology) and delete (or, at Air Computing’s request, return) any and all copies of the Documentation, any Air Computing passwords or access codes and any other Air Computing Confidential Information in its possession. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

5.4 Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5 (General Restrictions), 2.3 (No User Input Backups), 2.8 (Indemnification by Customer), 3 (Ownership), 4 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification), 10 (Confidential Information) and 12 (General Terms).

6. Limited Warranty.

6.1 Limited Warranty. Air Computing warrants, for Customer’s benefit only, that the Amium Product will operate in substantial conformity with the applicable Documentation. Air Computing’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Air Computing to use commercially reasonable efforts to correct the reported non-conformity, or if Air Computing determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Amium Product for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis.

6.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE AMIUM PRODUCT and RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER AIR COMPUTING NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. AIR COMPUTING does not warrant that Customer’s use of THE AMIUM Product will be uninterrupted or error-free, nor does AIR COMPUTING warrant that it will preserve or maintain the USER INPUT without loss. AIR COMPUTING SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AIR COMPUTING. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

7. Support. Online self-help support is available for the Amium Product at: https://support.amium.com.

8. Limitation of Remedies and Damages.

8.1 Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY Nor its suppliers SHALL have any liability arising out of or related to this agreement FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, Air Computing’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Air Computing DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.

8.3 Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer’s breach of Section 1.5 (General Restrictions); (b) under Section 2 (User Input); or (c) from a party’s breach of its obligations in Section 10 (Confidential Information) (but excluding claims arising from operation or non-operation of the Amium Product).

8.4 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

9. Indemnification. Air Computing shall defend Customer from and against any claim by a third party alleging that the Amium Product when used by Customer as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Air Computing (including reasonable attorneys’ fees) resulting from such claim, provided that Air Computing shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Air Computing to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Amium Product is (or in Air Computing’s opinion is likely to be) enjoined, if required by settlement or if Air Computing determines such actions are reasonably necessary to avoid material liability, Air Computing may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Amium Product; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Air Computing. The foregoing indemnification obligation of Air Computing shall not apply: (1) if the Amium Product is modified by any party other than Air Computing, but solely to the extent the alleged infringement is caused by such modification; (2) if the Amium Product is combined with products or processes not specified in the Documentation or provided by Air Computing, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Amium Product; (4) to any action arising as a result of User Input or any Third Party Integrations; or (5) if Customer settles or makes any admissions with respect to a claim without Air Computing’s prior written consent. THIS SECTION 9 SETS FORTH AIR COMPUTING’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

10. Confidential Information. Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Air Computing Technology, performance information relating to the Amium Product, and the terms and conditions of this Agreement shall be deemed Confidential Information of Air Computing without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Air Computing, the subcontractors referenced in Section 12.9), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

11. Publicity. Customer agrees that Air Computing may publicly reference Customer as a customer of the Amium Product.

12. General Terms.

12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.

12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.

12.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

12.5 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

12.6 Amendments; Waivers. Except as described above in “Modifications to this Agreement,” no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

12.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Amium Product is an on-line, subscription-based product, and that in order to provide improved customer experience Air Computing may make changes to the Amium Product, and Air Computing will update the applicable Documentation accordingly, and may likewise modify this Agreement as described above in “Modifications to this Agreement.” The support terms described in Section 7 (Support) may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Air Computing’s obligations as compared to those reflected in such terms as of the Effective Date).

12.8 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

12.9 Subcontractors. Air Computing may use the services of subcontractors and permit them to exercise the rights granted to Air Computing in order to provide the Amium Product under this Agreement, provided that Air Computing remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Amium Product as required under this Agreement.

12.10 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.11 Export Control. In its use of the Amium Product, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Amium Product in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Amium Product any information that is controlled under the U.S. International Traffic in Arms Regulations.

12.12 Government End-Users. Elements of the Amium Product are commercial computer software. If the user or licensee of the Amium Product is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Amium Product, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Amium Product was developed fully at private expense. All other use is prohibited.

12.13 Open Source. The Amium Product may contain or be provided with components subject to the terms and conditions of “open source” software licenses ("Open Source Software"). Open Source Software may be identified in the Documentation, or Air Computing shall provide a list of the Open Source Software for a particular version of the Amium Product to Customer upon Customer’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

12.14 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.

Last Updated: September 29, 2016

These Amium End User Terms for Team Members ("Agreement") are entered into as of the Effective Date between Air Computing, Inc. ("Air Computing" or "we") and you ("End User" or "you"), an individual who has been invited by an enterprise customer of Air Computing ("Customer") to participate in file sharing, syncing, collaboration and messaging with other members of Customer’s team ("Team") under Customer’s subscription to Air Computing’s proprietary solution ("Amium Product").

pacity as an employee or contractor of Customer or its affiliate, your use of the Amium Product is governed by Customer’s subscription agreement with Air Computing, and not this Agreement.

The "Effective Date" of this Agreement is the earlier to occur of the date you (i) first access the Amium Product or (ii) create an account with Air Computing for use of the Amium Product. This Agreement governs your use of the Amium Product on any computer, mobile phone or other device. From time to time, Air Computing may modify this Agreement. If you do not agree to the changes, you may uninstall the Client Software (as defined below) and cease using the Amium Product, but continued use of the Amium Product will constitute agreement to the then-current version of the Agreement. Air Computing will use reasonable efforts to notify you of the changes through communications through your account, email or other means.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, INSTALLING THE CLIENT SOFTWARE, OR USING ALL OR ANY PORTION OF THE AMIUM PRODUCT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OUR PRIVACY POLICY AND OUR ACCEPTABLE USE POLICY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCEPT THIS AGREEMENT AND DO NOT USE THE AMIUM PRODUCT OR INSTALL OR USE THE CLIENT SOFTWARE.

1. THE AMIUM PRODUCT

1.1. Access to the Amium Product. You may use the Amium Product solely for the benefit of Customer and subject to the terms and conditions of this Agreement and the technical documentation provided with the Amium Product ("Documentation"). You may access the Amium Product through: (i) an online dashboard; and (ii) the downloadable client software ("Client Software"). The foregoing rights include a limited, non-transferable, non-sublicensable, non-exclusive license to use the object code form of the Client Software, but only in accordance with (a) the Documentation and (b) this Agreement.

1.2. End User Account. You must create an Amium account in order to use the Amium Product. When setting up your account, you must provide accurate and complete information and use a unique e-mail address. This means you cannot set up an account using someone else’s name or contact information. Account registration information you submit is governed by our Privacy Policy. You have complete responsibility for your account and everything that happens on your account. This means you need to be careful with your password. If you find out that someone is using your account without your permission, you must notify Air Computing immediately. You may not transfer your account to someone else or use another end user’s account. Air Computing is not liable for any damages or losses caused by someone using your account without your permission. However, if Air Computing (or anyone else) suffers any damage due to the unauthorized use of your account, you may be liable. Your account may be subject to management by an administrative user designated by Customer. This means your access can be limited or terminated at Customer’s discretion.

1.3. General Restrictions. You shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Amium Product to a third party; (b) use the Amium Product to provide, or incorporate the Amium Product into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Amium Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to Air Computing); (d) copy or modify the Amium Product or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Amium Product (including any reports or data printed from the Amium Product); or (f) publicly disseminate information regarding the performance of the Amium Product.

2. User Input.

2.1. Sharing and Syncing. The Amium Product allows sharing and syncing of data, files, messages or related information ("User Input"). Any User Input you enter or upload to the Amium Product may be accessed, viewed, shared, used, modified or otherwise exploited by Customer and/or other members of the Team. You acknowledge and agree that (i) Air Computing will not have any liability for any accessing, viewing, sharing, use, modification, or other exploitation of your User Input and (ii) you have no expectation that User Input will be private or confidential.

2.2. Rights in User Input. You acknowledge that you are using the Amium Product for the benefit of Customer and as between you and Customer, Customer has all rights in your User Input. Notwithstanding the foregoing, you authorize Air Computing to use, copy, cache, transmit, modify, create derivative works of and publicly display the User Input in connection with providing the Amium Product to Customer (including its Team).

2.3. No User Input Backups. Air Computing does not maintain backups of your User Input. You are solely responsible for backing up your User Input.

2.4. Responsibility for User Input. You shall ensure that your use of the Amium Product and your User Input are at all times compliant with our Acceptable Use Policy ("AUP") and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. You are solely responsible for the accuracy, content and legality of your User Input. You represent and warrant to Air Computing that you have sufficient rights to upload and share your User Input as described above and that your User Input (i) does not infringe, misappropriate, or violate the rights (including, without limitation, the intellectual property, privacy or publicity rights) of third parties, (ii) does not violate the AUP and (iii) otherwise complies with the terms of this Agreement. Air Computing has the sole right, but not necessarily the obligation, to delete or edit at any time any User Input that violates these rules or that we believe to be inappropriate for any reason.

2.5. No Sensitive Personal Information. You specifically agree not to submit to the Amium Product any Sensitive Personal Information. "Sensitive Personal Information" means any of the following: (i) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HHIPAA") or (ii) any other information deemed to be “personal data” of an EU citizen (as such term is defined in EU Data Protection Directive 95/46/EC or any successor law or regulation). You acknowledge that Air Computing is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Amium Product is not HIPAA compliant. Air Computing shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

2.6. Third Party Integrations. Air Computing may make available integrations with third party products and services for use in conjunction with the Amium Product ("Third Party Integrations"). You are solely responsible for determining whether to use such Third Party Integrations, including without limitation, whether to provide User Input or other data to such Third Party Integrations. Air Computing shall have no responsibility for any Third Party Integrations, including for their interoperability, security, functionality, operation, or integrity or for any use of your User Input or other data by Third Party Integrations. In order for the Amium Product to interoperate with such Third Party Integrations, you may be required to input credentials in order for the Amium Product to access and receive relevant information from such Third Party Integrations. You are solely responsible for complying with any relevant terms and conditions or usage restrictions applicable to such Third Party Integrations and maintaining appropriate accounts in good standing with the providers of such Third Party Integrations. Upon request from the provider of a Third Party Integration, at Air Computing’s election, you will provide confirmation of your authorization to access your accounts. From time to time, Air Computing may change which Third Party Integrations may be used with the Amium Product or discontinue providing any Third Party Integrations in its sole discretion.

2.7. Indemnification by You. You shall indemnify, defend and hold harmless Air Computing from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to your User Input or breach or alleged breach by you of Sections 2.4 (Responsibility for User Input), 2.5 (No Sensitive Personal Information), or 2.6 (Third Party Integrations).

3. OWNERSHIP

3.1. Air Computing Technology. You acknowledge that you are obtaining only a limited right to access the Amium Product and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to you under this Agreement. You agree that Air Computing or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Amium Product (including Client Software), Documentation and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Air Computing Technology").

3.2. Feedback. From time to time, you may submit comments, questions, suggestions or other feedback relating to any Air Computing product or service to Air Computing ("Feedback"). Air Computing may freely use or exploit Feedback in connection with any of its products or services.

3.3. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, you agree that Air Computing may obtain and aggregate technical and other data about your use of the Amium Product that is non-personally identifiable with respect to you ("Aggregated Anonymous Data"), and Air Computing may use the Aggregated Anonymous Data to improve, support and operate the Amium Product and otherwise for any business purpose during and after the term of this Agreement. For clarity, this Section 3.3 does not give Air Computing the right to identify you as the source of any Aggregated Anonymous Data.

4. TERM AND TERMINATION

4.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with Section 4.2.

4.2. Termination and Suspension. Either party may terminate this Agreement at any time, for any reason, immediately upon notice to the other party. Customer may remove you from the Team at any time, for any reason, via the administrative functionality of the Amium Product, which will terminate this Agreement.

4.3. Effect of Termination. Upon any expiration or termination of this Agreement, you shall immediately cease any and all use of the Amium Product (including any and all Client Software and related Air Computing Technology) and delete (or, at Air Computing’s request, return) all copies of the Client Software, and any other Confidential Information (as defined below) in your possession. You acknowledge that following termination you shall have no further access to the Amium Product or any User Input. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

4.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.3 (General Restrictions), 2.7 (Indemnification by You), 3 (Ownership), 4 (Term and Termination), 5 (Warranty Disclaimer), 6 (Limitation of Remedies and Damages), 7 (Confidential Information) and 8 (General Terms).

5. WARRANTY DISCLAIMER

THE AMIUM PRODUCT IS PROVIDED “AS IS”. NEITHER AIR COMPUTING NOR ITS SUPPLIERS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE AMIUM PRODUCT, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. AIR COMPUTING SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AIR COMPUTING.

6. Limitation of Remedies and Damages

6.1. Consequential Damages Waiver. NEITHER AIR COMPUTING Nor its suppliers SHALL have any liability arising out of or related to this agreement FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

6.2. Liability Cap. AIR COMPUTING AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS (US$100).

6.3. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 6 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

7. CONFIDENTIAL INFORMATION. You agree that all code, inventions, know-how, business, technical and financial information you obtain from Air Computing, including without limitation any Air Computing Technology, performance information relating to the Amium Product, and the terms and conditions of this Agreement, constitute the confidential and proprietary information of Air Computing ("Confidential Information"). Except as expressly authorized herein, you will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling your obligations and exercising your rights under this Agreement. You may make disclosures to the extent required by law or court order, provided you notify Air Computing in advance and cooperate in any effort to obtain confidential treatment. You acknowledge that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by you, Air Computing shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

8. GENERAL TERMS. This Agreement will be governed by and construed in accordance with California law and each party agrees to submit to the exclusive jurisdiction of the courts in Santa Clara County, California for all purposes relating to this Agreement. You may not assign this Agreement except upon the advance written consent of Air Computing. Subject to the foregoing limitation on assignment, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and each of their successors and permitted assigns. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The parties are independent contractors. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise contrary to law, such provision will be interpreted so as to best accomplish its intended objectives and the remaining provisions of this Agreement will remain in full force and effect. This Agreement supersedes any other prior or collateral agreements, whether oral or written, with respect to the subject matter hereof. Except with respect to Air Computing’s right to modify this Agreement as provided above, no amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party.

You agree not to engage in any of the following prohibited activities:

1. copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
2. using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Air Computing servers than a human can reasonably produce in the same period of time by using a conventional web browser;
3. transmitting spam, chain letters, or other unsolicited email;
4. attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
5. taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
6. uploading invalid data, viruses, worms, or other software agents through the Service;
7. collecting or harvesting any personally identifiable information, including account names, from the Service;
8. using the Service for any commercial solicitation purposes;
9. impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
10. interfering with the proper working of the Service;
11. accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
12. bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
13. modifying, disassembling, decompiling or reverse engineering the Software, except to the extent that such restriction is expressly prohibited by law; or
14. selling, licensing, renting, modifying, distributing, copying, reproducing, transmitting, publicly displaying, publicly performing, publishing, adapting, editing or creating derivative works from any Air Computing Content.

You agree to only add to your shared folder or share User Files:

1. that you have the lawful right to use, copy, distribute, transmit, or display; and
2. that do not infringe the intellectual property rights or violate the privacy rights of any third party (including, without limitation, copyright, trademark, patent, trade secret, or other intellectual property right).
You agree not to add to your shared folder or share User Files that:
3. may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
4. may create a risk of any other loss or damage to any person or property;
5. seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
6. may constitute or contribute to a crime or tort;
7. contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;
8. contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
9. contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
10. contains any information or content that you know is not correct and current.

Subdomain squatting is strictly prohibited. You agree that you will not use subdomains for any illegal or fraudulent purpose. Air computing reserves the right to rename or reassign subdomains that:

1. have no reasonable association with the party for whom the subdomain was created;
2. are misleading or use third party trademarks; or
3. are inactive for a period of more than six months.